In previous blogs we explained that receiving an inheritance can compromise the recipient’s means-tested benefits which, in the case of a person with disabilities, could put their future financial security at risk. If the recipient chooses to refuse their inheritance, or give it away or spend it quickly, this will likely be viewed as deliberate deprivation of assets by the Department for Work and Pensions (DWP) and could compromise a claim for means tested benefits.
In our earlier blog on this subject back in 2021 we commented on the case of LMS, a 21 year- old woman in receipt of means-tested benefits who received a significant inheritance from her grandfather. In this complex case, the Court of Protection authorised the transfer of LMS’ inheritance into Trust, thus saving LMS’ eligibility for her means-tested benefits. However, the Court of Protection confirmed that the significant operative purpose of the order to transfer into Trust was to affect LMS’ grandfather’s testamentary intention and not to preserve LMS’ means-tested benefits.
Despite this qualifying statement, the case resulted in optimism from some sectors that there was now a ‘way out’ for people who were going to lose their means-tested benefits. In our blog we urged caution and confirmed that anyone considering leaving money to someone in receipt of means-tested benefits should do so via the setting up of a Trust.
New case law
The issue of deprivation of assets has been brought before the courts again in the case of F and R. (case  EWCOP 49).
R was a man in his 30s with a lifelong disability and was in receipt of means-tested benefits. R was left a share of his cousin’s estate, resulting in an inheritance of between £400,000 and £600,000. R’s father applied to the Court of Protection asking that the inheritance be put into Trust to save R’s means-tested benefits. However, the Court was concerned that the significant operative purpose of re-directing the inheritance into Trust was to preserve means-tested benefits. The judge was presented with little evidence that R’s cousin actually wanted R to inherit via a Trust or that R’s cousins had considered R’s means-tested benefits. This was the key difference to the LMS case. Based on this, the Court decided not to approve moving the inheritance into Trust.
What does this mean?
The case highlights that redirecting an inheritance into Trust will continue to be viewed as deliberate deprivation of assets by the DWP, unless other special circumstance exist. The case of LMS was a red herring; as circumstances existed (the grandfather’s intention before he died) which resulted in approval of the Trust. It is very unlikely that there will be other cases on similar facts.
Our advice remains that if you are considering giving money away (in your lifetime or by your Will) to somebody reliant on means-tested benefits, an appropriately drafted Trust should be used. A Trust is a way of securely leaving assets for the benefit of loved ones in a way that does not compromise means-tested benefits. Receiving a gift or an inheritance should be something to be celebrated, not something to cause worry or concern. We receive too many calls from those distressed following the news that they, or a loved one, has been left an inheritance impacting means-tested benefits; a Trust can avoid this.
How can we help
We can assist you in choosing the Trust that’s right for you in your circumstances, and you can download our free Trust information sheet here.
If you would like to discuss your own Trust or have a question regarding inheritance and means-tested benefits, please get in touch and speak to one of our specialists on 01273 610 611 or email us at email@example.com